Nr 12 ROCZNIK INTEGRACJI EUROPEJSKIEJ 2018 BOGDAN KOSZEL DOI : 10.14746/rie.2018.12.7 Adam Mickiewicz University in Poznań ORCID: 0000-0002-7118-3057 The role of the Bundestag in shaping the European policy of reunited Germany1 Following the reunification of Germany, the first parliamentary elections attended by the citizens of the former German Democratic Republic were held on December 2, 1990. However, this did not lead to any major shifts in the German political scene and power remained in the hands of the CDU/CSU-FDP coalition and Chancellor Helmut Kohl. Although the circumstances had changed, Germany’s European policy contin- ued as before and the previous role of the parliament in shaping the state’s foreign policy was maintained. Members of the German Bundestag and representatives of the Federal Council (Bundesrat) exercise parliamentary control over the government’s European policy, and the government should take their demands into account in its activities in the European Union. This requirement is set forth in Article 23 of the Ger- man Constitution, reading as follows: “The Bundestag and, through the Bundesrat, the Länder [represented by the Federal Council] shall participate in matters concerning the European Union. The Federal Government shall keep the Bundestag and the Bundesrat informed, comprehensively and at the earliest possible time” (Paragraph 2). “Before participating in legislative acts of the European Union, the Federal Government shall provide the Bundestag with an opportunity to state its position. The Federal Govern- ment shall take the position of the Bundestag into account during the negotiations” (Paragraph 3) (Ustawa Zasadnicza, 2007, p. 99).2 In addition, the Lisbon Treaty gave more power to national parliaments by authorizing them to verify the principle of sub- sidiarity, to participate in treaty amendment procedures, to build “the area of freedom, security and justice” of the EU and to access information and draft legal acts of the EU institutions (Article 8c., Traktat z Lizbony, 2009). In Germany, it has become customary for the Chancellor to present the government’s position and German postulates to the Bundestag, usually before the more important meetings of the European Council. The Chancellor’s presentation is then discussed by the MPs and, after a vote, the Chancellor goes to Brussels with the position thus adopted (or modified). In this way, the public is kept informed of the government’s decisions on European affairs, as parliamentary sessions are broadcast live by the state television. The first serious problems with the European policy of reunited Germany could already be observed in the Bundestag after the signing of the Maastricht Treaty, one of 1 Paper written within an NCN research grant “The role of Germany in the European Union’s decision-making processes in the 21st century.” UMO-2014/15/B/HS5/00723. 2 For more information about the role of the Bundesrat and the Länder in formulating this policy, see Suszycka‐Jasch and Jasch, The participation of the German Länder in formulating German EU- policy, “German Law Journal” 2009, vol. 10, pp. 1215–1256. 114 Bogdan Koszel RIE 12 ’18 the milestones of European integration. The Treaty establishing the European Union, signed on February 7, 1992, required ratification by the European Parliament and the member states, either through a parliamentary path or, as in the case of France or Den- mark, through a referendum. Germany, in the absence of any profound social divisions on European issues, opted for a parliamentary solution. Consequently, on December 2, 1992 the Bundestag adopted the Maastricht Treaty without much discussion and by an overwhelming majority of 543 votes in its favor, 17 votes against it, and 8 votes abstaining. The Bundesrat gave its acceptance on December 18, 1992, with all the Länder voting for the Treaty. Later that month, however, five complaints were quite unexpectedly submitted to the Federal Constitutional Court in Karlsruhe, challenging the ratification act on the grounds of its alleged incompatibility with the German Basic Law. Representatives of these groups, Manfred Brunner, Karl Albrecht Schachtschnei- der, Hans-Christian Ströbele and Ulrich K. Preuß accused the government and parlia- ment of agreeing to the transfer of German sovereignty to supranational bodies, which purportedly deprived the Bundestag of its power and was contrary to the principles of democracy. The transfer of powers to supranational organizations was allegedly a vio- lation of the Basic Law, since decisions on such vital matters as sovereignty should be taken in Germany and not on the European level. Federal President Johannes Rau explained to the Federal Constitutional Court that he would only sign the ratification if the Court did not uphold the complaints (Bryde, 1993, p. 37). It was not until October 12, 1993 that the Second Senate of the Federal Constitu- tional Court issued its long-awaited ruling on the Maastricht Treaty. Out of the five complaints referred to in the ruling, four did not pass the admissibility test and were dismissed. Only the complaint by Manfred Brunner, former Head of Cabinet of EC Commissioner Martin Bangemann, was declared formally admissible, but it was then rejected for lack of grounds (Winkelmann, 1994). The activities of the Bundestag in the 1990s and in the early 21st century had a huge impact on the development of German defense policy, and thus had a direct impact on the overall shape and effectiveness of the EU’s Common Foreign and Security Policy and the Common Security and Defense Policy. From 1993, Chancellor Kohl’s government tried to push through a parliamenta- ry law that would make it possible to amend the Basic Law and allow Bundeswehr soldiers to participate in international armed forces. However, those efforts came up against strong resistance from the opposing SPD, which did not accept the participation of German troops in any peace-making operations and only tolerated peace-keeping ones, as long as they were based on a specific UN mandate (Diehl, 1994, p. 445). On July 12, 1994, the ruling of the Second Chamber of the Constitutional Court created a constitutional and legal basis for the use of the German armed forces abroad. The parties of the ruling CDU/CSU-FDP coalition, constantly under fire from their western allies, decided to increase the Bundeswehr’s participation in peace-keeping operations in former Yugoslavia. Wolfgang Schäuble, head of the CDU/CSU parlia- mentary faction, was supposed to say publicly that “now we will certainly use more than just a checkbook.” The Court’s ruling finally put an end to speculations about the admissibility, competences and limits of Germany’s active foreign and security policy. The Federal Republic was formally ‘allowed’ to fulfill the obligation guaranteed in the RIE 12 ’18 The role of the Bundestag in shaping the European policy... 115 preamble to the Basic Law towards NATO and the European Union, i.e. “to promote world peace as an equal partner in a united Europe.” The parliament’s approval of such military operations was treated by the judges as a sine qua non condition for any political decision to deploy the Bundeswehr outside the scope of NATO operations (Urteil, 1994, p. 5). The Court’s verdict of July 12, 1994 allowed the Bundeswehr to participate in peacekeeping operations not only as part of peace missions of the Blue Helmets but also in NATO combat operations, provided that each time a decision in favor of such actions was taken by a simple majority of the Bundestag. This definitively put an end to the long-standing dispute in Germany over the constitutional and legal basis for the use of German armed forces outside Germany. The parties of the ruling CDU/CSU- FDP coalition, accused of inaction and under fire from their western allies, decided to increase the Bundeswehr’s participation in peacekeeping operations in former Yugo- slavia (Balkan, 1994). The assertive foreign and European policy of the Schröder/Fischer government (1998–2005), characterized by prioritizing German national interests, resulted in Ber- lin’s refusal to participate in the anti-Iraq operation orchestrated and conducted by the United States in April 2003. As a result of the ensuing public debate, on March 18, 2005 the Bundestag adopted another Law on the Participation of the Parliament in Decisions on the Deployment of Armed Forces Abroad. Only those missions in which Bundeswehr soldiers would be involved in armed activities would require the Bun- destag’s consent. This did not apply to humanitarian, rescue and peace-keeping (polic- ing) missions. The procedure required the Federal Government to send a request to the Bundestag for approval for the deployment of the armed forces, in good time before the start of the mission. It was specified that such a request should specify the task of the mission, its application, legal basis, the number of soldiers required, the possibility of using the armed forces, the planned duration of the mission and the estimated costs of the expedition of German soldiers (Gesetz über die parlamentarische Beteiligung, 2005). The Bundestag’s influence on European politics was most evident after the adop- tion of the Lisbon Treaty. After the end of the Portuguese Presidency, crowned by the signing of the Lisbon Treaty on December 13, 2007, the process of the Treaty’s ratification by the European Parliament and the member states of the European Union began. On April 24, 2008 the Bundestag ratified the Lisbon Treaty in a landslide vote, as the coalition parties and most of the opposition voted in favor of the Lisbon Treaty. Angelica Schwall-Düren, Vice-Chairwoman of the SPD parliamentary group in the Bundestag, and Volker Kauder, head of the CDU/CSU group, were in favor of rapid ratification of the Treaty, saying that it “strengthened democracy” in the EU and made it more “specific.” 515 MPs supported the ratification of the Treaty.